Hayden Nomination Unlikely to Be Sidelined by NSA Reports

A day after news that the National Security Agency has compiled a massive database of individual telephone records, the former agency chief breezed toward apparent confirmation as the new CIA director with few snags.

Air Force Gen. Michael Hayden, tapped by President Bush to head the CIA, defended the NSA's surveillance tactics Friday as he continued to meet with the key senators who will ultimately decide whether he can take the post.

The White House showed no signs of changing course on its nominee despite tough words from several lawmkakers about the alleged cooperation by top telecommunications companies with the NSA to assist in collecting customers' calling patterns.

"We're 100 percent behind Michael Hayden," incoming press secretary Tony Snow told reporters Friday. "There's no question about that, and [we're] confident that he is going to comport himself well and answer all the questions and concerns that members of the United States Senate may have in the process of confirmation."

On that note, one of the phone companies asked by the NSA agency to turn over its customers' call records — Qwest Communications Inc. — refused after deciding the request violated privacy law, a lawyer for former Qwest CEO Joseph Nacchio said Friday.

The lawyer confirmed that the government approached that company in the fall of 2001 seeking access to the records with neither a warrant nor approval from a special court established to handle surveillance matters.

"Mr. Nacchio concluded that these requests violated the privacy requirements of the Telecommunications Act," attorney Herbert J. Stern said in a written statement from his Newark, N.J., office.

Nacchio told Qwest officials to refuse the NSA requests, which kept coming until Nacchio left the company in June 2002, Stern said.

Hinting at a possible flashpoint next week — the Senate Intelligence Committee has Hayden scheduled to appear next Wednesday — Snow said Hayden might not be able to answer questions regarding classified information unless it's done in a closed session with certain lawmakers cleared to hear his answers.

Hayden was scheduled to meet with a number of senators Friday, including Sens. John McCain and Ron Wyden, D-Ore., and Senate Minority Leader Harry Reid, of Nevada.

After meeting with Hayden, Sen. Chuck Hagel, R-Neb., said that he has "absolute confidence" in the general and said his Senate confirmation hearings would help get the facts on the surveillance programs.

"He's going to have to explain what his role was. To start with, did he put that program forward, whose idea was it, why was it started?" Hagel said. "He knows that he's not going to be confirmed without answering those questions."

Sen. Susan Collins, R-Maine praised Hayden as an excellent nominee but said Congress should ask tough questions about the NSA programs.

Collins, chairwoman of the Homeland Security and Governmental Affairs Committee, said it was disconcerting "to have information come out by drips and drabs, rather than the administration making the case for programs I personally believe are needed for our national security."

Hayden wouldn't comment Fridayon the data-collection reports, but defended the NSA's work.

"Everything that the agency has done has been lawful. It's been briefed to the appropriate members of Congress," Hayden said. "The only purpose of the agency's activities is to preserve the security and the liberty of the American people. ... And I think we've done that."

Democratic Sen. Joe Biden blasted the surveillance program but called Hayden "a first-rate guy."

"He's caught right in the middle of this," Biden, of Delaware, told CBS' "The Early Show." "I think it's going to make it difficult."

Democrats suggested Thursday that Hayden's confirmation could be held up until questions about the NSA programs are more fully answered.

"He was head of NSA, and if the administration is just going to stonewall as they've done in the past and not give us answers, we'll have no choice but to ask General Hayden to answer those questions before going forward with a confirmation," said Sen. Chuck Schumer, D-N.Y.

At issue is a USA Today article that reported that the telephone calling patterns of millions of Americans are being tracked by NSA, with the help of three of the nation's largest telephone companies.

Click here to see the USA Today article.

AT&T, Verizon and BellSouth, which collectively have 200 million customers, all agreed to hand over calling lists of its customers when the program began shortly after the Sept. 11, 2001, terror attacks. Denver-based Qwest, which provides local phone service to 14 million customers in 14 states in the West and Northwest, refused to participate due to concerns of the legal implications of handing over phone numbers to the government, USA Today reported.

Officials at the NSA say they don't have records of customers' names, street addresses and other personal information. Data records include only the numbers of dialed and received calls, which can be used to detect patterns and suspected links to terrorism.

The program does not involve listening to or taping the calls, officials said. By documenting the path of phone calls, whether local or long distance, NSA employees hope to uncover terror-planning efforts.

Hayden was director of the NSA from 1999 until 2005, when he became deputy director of national intelligence. As NSA chief, he was in charge of the terrorist surveillance program that the White House describes as an effort to track phone calls and e-mails of individuals in the United States speaking to people overseas who are suspected to have links to terror groups.

Hayden was also the top man when the NSA phone number collection began shortly after Sept. 11. As he did when news of the warrantless wiretap program broke, Hayden defended NSA's activities.

President Bush on Thursday denied that the U.S. government is operating outside the law and said domestic-to-domestic calls are not monitored. But he did not directly respond to the report that NSA is tracking the calling patterns of millions of Americans.

"The privacy of ordinary Americans is fiercely protected in all our activities," Bush said, adding that the program is aimed at terror suspects. "We're not mining or trolling through the personal lives of millions of innocent Americans."

Advanced data-mining techniques, and the wide availability of phone numbers, means NSA employees — and many others — can easily look up who owns what numbers. But a key congressional aide familiar with algorithmic programming told FOX News that the NSA program sounds like a lot of mathematical analyses.

"It's your number-crunching geeks that put this together," the aide said.

While the aide said he had no knowledge of this particular NSA program, based on the reporting, the NSA plan allows phone number groups to be connected to other phone number groups to create a web of numbers.

Over top of that web, analysts can lay known information on Al Qaeda and other terror organizations and quickly find relationships among number groups.

Law enforcement agencies use similar types of activities, he said, adding that something similar to the NSA program is currently being used to ferret out conspiracies in the drug trade.

The aide pointed out that based on the reports, it is not a data-mining program because no content comes out of the phone numbers. He added that phone numbers are not inherently private.

"There's no constitutional protection to your phone number," he said.

Still, lawmakers say they are concerned.

"These are tens of millions of Americans who are not suspected of anything but we're just going to collect their phone info for the heck of it," said Sen. Patrick Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee

"This morning's article reinforces our long-held view that any and all electronic surveillance of Americans — including all activities of the president's surveillance program — must comply with the Foreign Intelligence Surveillance Act and the Fourth Amendment," Rep. Jane Harman of California, ranking Democrat on the House Intelligence Committee, wrote in a letter to the Democratic caucus.

Legal experts say the Supreme Court has twice ruled that collecting phone records alone does not require a warrant.

One lawmaker who has previously been briefed on the various NSA programs, Sen. Dianne Feinstein, D-Calif., a member of the Senate Intelligence Committee, said she the program does not sound intrusive.

Congress Staying Informed?

Although Bush said he has briefed "appropriate members of Congress," some lawmakers are concerned they aren't getting the whole story.

"Senator Reid has participated in briefings during which the NSA's activities were discussed. Senator Reid does not believe these briefings have been satisfactory," said Jim Manley, Reid's senior adviser.

Manley noted that Reid "has said repeatedly that the proper thing would be for the full Intelligence Committee to be briefed on all intelligence activities." Reid was meeting with Hayden on Friday afternoon.

Senior administration officials said the number of members of Congress who have been briefed on "the totality of NSA operations" has been expanded in recent months.

"The bipartisan members of the Subcommittee on Oversight of the Terrorist Surveillance Program have been fully informed of all aspects of the NSA's activities. We have received several briefings and conducted three hearings with more to follow. It is critical to allow the subcommittee to continue its oversight," Senate Intelligence Committee Chairman Pat Roberts, R-Kan., said in a statement.

"I remain convinced that the program authorized by the president is lawful and absolutely necessary to protect this nation from future attacks."

FOX News' Carl Cameron, Jim Angle and Trish Turner and The Associated Press contributed to this report.